RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        23 October 2007
      DOCKET NUMBER:  AR20070008084


      I certify that hereinafter is recorded the true and complete record
of the proceedings of the Army Board for Correction of Military Records in
the case of the above-named individual.

|     |Ms. Catherine C. Mitrano          |     |Director             |
|     |Mrs. Nancy L. Amos                |     |Analyst              |


      The following members, a quorum, were present:

|     |Mr. Hubert O. Fry                 |     |Chairperson          |
|     |Mr. William Blakely               |     |Member               |
|     |Mr. Michael J. Flynn              |     |Member               |

      The Board considered the following evidence:

      Exhibit A - Application for correction of military records.

      Exhibit B - Military Personnel Records (including advisory opinion,
if any).

THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests that his discharge be upgraded and, in effect,
that the narrative reason for his discharge be changed.

2.  The applicant states he does not argue that what he did was wrong.
However, he believes it would have been more appropriate to discharge him
for commission of a homosexual act with an honorable or a general under
honorable conditions discharge.  He had a superb military record.  Before
his misconduct, all he ever wanted to do was retire from the military.  He
believes that all of his efforts show that he was not intentional in his
actions.  He is gay and he should not have done what he did, but he
believes that he was just placed, as a recruiter, into the environment that
gave place to his desires.  He is guilty of being a homosexual and having
to hide it so long that when he was given the opportunity to express it, he
made a bad judgment call.

3.  The applicant provides a copy of his California driver license, social
security card, and South Carolina Department of Health and Environmental
Control card; two DA Forms 638 (Recommendation for Award), one awarding him
the Army Achievement Medal and one awarding him the Army Commendation
Medal; and orders discharging him from the U. S. Army Reserve with his
Honorable Discharge Certificate.

CONSIDERATION OF EVIDENCE:

1.  After having had prior service in the U. S. Army Reserve, the applicant
enlisted in the Regular Army on 26 June 1997 for 4 years.  He was promoted
to Specialist, E-4 on 1 May 1999.  He attended the Recruiter Course in
2000.

2.  The applicant’s discharge packet is not available.

3.  The applicant’s Army Discharge Review Board (ADRB) packet shows that,
on 26 October 2000, the applicant was arrested and incarcerated in Orange
County, CA and charged with willfully and unlawfully participating in an
act of oral copulation with a minor; two counts of willfully and unlawfully
attempting to participate in an act of oral copulation with a minor; and
willfully and unlawfully annoying or molesting a minor.  The available
records on PERMS (the Personnel Management System) show that the minors
were 17-year old high school students.

4.  The applicant’s ADRB packet shows the applicant’s commander notified
the applicant on 8 January 2001 of initiation of separation action under
the provisions of Army Regulation 635-200, chapter 14, by reason of
misconduct – commission of a serious offense, with a discharge under other
than honorable conditions (UOTHC).  The cited reasons for the action were
the applicant’s violating regulations by wrongfully engaging in social
activity of a personal, unofficial nature with three individuals who were
the subject of a recruiting effort; wrongfully consuming alcohol with the
subject of a recruiting effort; wrongfully sexually harassing three
individuals by propositioning them for sexual favors; engaging in carnal
copulation with the subject of a recruiting effort; and attempting to
engage in carnal copulation with two individuals.

5.  The applicant’s ADRB packet shows the applicant was advised of his
rights, he consulted with legal counsel, he was advised of the impact of
the discharge action, and he requested appearance before a board of
officers.

6.  The applicant’s ADRB packet shows that, on 19 January 2001, the
applicant plead guilty to one count of participating in an act of oral
copulation with a        17-year old.  He was sentenced to 3 years formal
probation, 150 days incarceration (44 days off for good conduct), and a
$200.00 fine.

7.  The applicant’s ADRB packet shows the applicant’s administrative board
was held on 10 April 2001.  The applicant appeared with counsel.  The board
recommended separation with a discharge UOTHC.  On 7 May 2001, the
separation authority approved the findings and recommendations of the
board, waived further rehabilitative efforts, and directed that the
applicant be discharged with a discharge UOTHC.

8.  On 30 May 2001, the applicant was discharged, in pay grade E-1, with a
discharge UOTHC under the provisions of Army Regulation 635-200, chapter
14 with a narrative reason of “Misconduct.”  He had completed 3 years,
         8 months, and 2 days of creditable active service and he had 93
days of lost time (civil confinement).

9.  On 13 October 2004, the ADRB denied the applicant’s request to upgrade
his discharge.

10.  Army Regulation 635-200 sets forth the basic authority for the
separation of enlisted personnel.  Chapter 14 establishes policy and
prescribes procedures for separating members for misconduct.  Specific
categories include minor disciplinary infractions, a pattern of misconduct,
commission of a serious offense, convictions by civil authorities,
desertion or absence without leave.  Action will be taken to separate a
member for misconduct when it is clearly established that rehabilitation is
impracticable or is unlikely to succeed.  A characterization of service of
UOTHC is normally appropriate.

11.  Army Regulation 635-200, chapter 15, prescribes the criteria and
procedures for the investigation of homosexual personnel and their
discharge from the Army. When the sole basis for separation is
homosexuality, a discharge UOTHC may be issued only if such
characterization is otherwise warranted and if there is any one of several
identified findings.  In all other cases, the type of discharge will
reflect the character of the Soldier’s service.  This does not preclude
separation, in appropriate circumstances, for another reason specified in
this regulation.

12.  Army Regulation 635-200, paragraph 3-7a, provides that an honorable
discharge is a separation with honor and entitles the recipient to benefits
provided by law.  The honorable characterization is appropriate when the
quality of the member’s service generally has met the standards of
acceptable conduct and performance of duty for Army personnel, or is
otherwise so meritorious that any other characterization would be clearly
inappropriate.

13.  Army Regulation 635-200, paragraph 3-7b, provides that a general
discharge is a separation from the Army under honorable conditions.  When
authorized, it is issued to a Soldier whose military record is satisfactory
but not sufficiently meritorious to warrant an honorable discharge.  A
characterization of under honorable conditions may be issued only when the
reason for the Soldier’s separation specifically allows such
characterization.

DISCUSSION AND CONCLUSIONS:

1.  In the absence of evidence to the contrary, it is presumed that the
applicant’s administrative separation was accomplished in compliance with
applicable regulations with no indication of procedural errors which would
tend to jeopardize his rights.

2.  The applicant argued that it would have been more appropriate to
discharge him for commission of a homosexual act with an honorable or a
general under honorable conditions discharge.  However, his misconduct is
no different than the acts of a heterosexual male recruiter who wrongfully
consumes alcohol with the subject of a recruiting effort or wrongfully
sexually harasses three female individuals by propositioning them for
sexual favors or engages in carnal copulation with the female subject of a
recruiting effort or attempts to engage in carnal copulation with two
female individuals would be.  To make the misconduct worse, the subjects of
the applicant’s misconduct were high school students and were minors.

3.  The mere fact that misconduct consists of homosexual acts (and the
applicant’s misconduct did not consist solely of homosexual acts – he
wrongfully consumed alcohol with a potential and most likely underage
recruit) does not preclude separation for another reason specified in this
regulation.

4.  There is insufficient evidence that would warrant granting the relief
requested.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

__hof___  __wb____  __mjf___  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The evidence presented does not demonstrate the existence of a probable
error or injustice.  Therefore, the Board determined that the overall
merits of this case are insufficient as a basis for correction of the
records of the individual concerned.




                                  __Hubert O. Fry_____
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20070008084                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20071023                                |
|TYPE OF DISCHARGE       |UOTHC                                   |
|DATE OF DISCHARGE       |20010530                                |
|DISCHARGE AUTHORITY     |AR 635-200, ch 14. . . . .              |
|DISCHARGE REASON        |A60.00                                  |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |Ms. Mitrano                             |
|ISSUES         1.       |110.00                                  |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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